Delhi District Court
Shri Awtar Singh & Anr vs Shri Jasbir Singh on 30 March, 2013
Awtar Singh & Anr. v. Jasbir Singh RC/ARC/E-98/11
IN THE COURT OF SH. MANISH YADUVANSHI, SCJ-CUM-RC (SOUTH)
SAKET COURTS COMPLEX, NEW DELHI
RC/ARC/E-98/11
IN THE MATTER OF:
SHRI AWTAR SINGH & ANR. .... PETITIONERS
VERSUS
SHRI JASBIR SINGH .... RESPONDENT
ORDER
1. To a petition under Section 14(i)(e) read with Section 25(B) of the DRC Act (hereinafter, called the 'Act'), the respondent filed an application under Section 25(B) (4) of the Act seeking leave to contest along with his affidavit. Rejoinder affidavits were also filed. This order disposes off the application of the respondent seeking leave to contest as aforestated.
2. The petitioners' are brothers. The petition is in respect of property bearing No. C-1, Malviya Nagar, New Delhi-110017 of which one room on the ground floor which is shown in blue colour in the site plan (hereinafter, the 'demised premises') was let out on a monthly rent of Rs.3,000/- excluding all other charges by Sh. Jaswant Singh, father of petitioners. He is an old tenant. The petitioners' claim that they are co-owners of the entire premises No. C-1, Malviya Nagar, New Delhi-110017 of which the demised premises is a part. The said property was allotted to their father Sh. Jaswant Singh and on his death on 12.04.1972, the petitioners' became its owners. Lease deed of this premises was executed on behalf of the President of India in favour of Smt. Ram Kaur, widow of Sh. Jaswant Singh (father of petitioners) on 17.11.1973. An oral family settlement was made between the natural heirs of Sh. Jaswant Singh which was later reduced into writing on 02.02.1986. In fact, the petitioner No.1 i.e. Awtar Singh had filed a suit for Declaration with consequential relief of Permanent Injunction which was decreed in Result : Allowed Page 1 of 7 Awtar Singh & Anr. v. Jasbir Singh RC/ARC/E-98/11 appeal by Sh. Satnam Singh, then Senior Sub-Judge, Delhi in RCA No. 317/89 on 12.02.1992. A decree of Declaration was passed to the effect that the petitioners' are owners of the said premises. Their names were mutated in L&DO records on 12.01.1993. A conveyance deed dated 17.11.2009 was also effected.
2.1 As per the petition under the oral tenancy, the demised premises is to be used as a residential flat only. The petitioners' along with their family members are also residing in premises No. C-1, Malviya Nagar, New Delhi in the portion which is shown in yellow colour in the site plan. A similar eviction petition is also filed by the petitioners' in regard to another room in the said premises in occupation of tenant Sh. Satish Kumar and Smt. Indu Arora. In clause 18(a)(4) in the present petition, reference of Sh. Satish Kumar and Smt. Indu Arora is given. Likewise, in the connected petition No. E-97/11, the reference of the respondent herein is given. The room in the tenancy of the respondent herein is shown in red colour in the site plan. There is one more room shown in green colour in the site plan and according to the petitioner No.2, it is he who is using the said room for his business purposes for the last more than 40 years. Thus, the demised premises in the instant case are shown in red colour in the site plan actually relied by the petitioners. The petitioners are now obtaining the demised premises for their bona fide requirements on the ground that the portion in their possession is insufficient. The petitioner No.1's family comprises of seven (7) members including himself. It is also inclusive of an unmarried daughter namely Ms. Sarabjit Kaur. The petitioner No.2's family is consisting of six (6) members including the petitioner himself. Apart from them, both the petitioners have married daughters and a widowed sister who are on regular family visiting terms with their family. It is claimed that the petitioners do not own any other property in Delhi.
3. The respondent has although filed separate leave to contest petition, however, he has taken similar grounds in his petition. It is submitted that the premises are residential in nature and were let out for commercial purpose. It is also submitted that user of the premises is permitted by the orders of Lt. Governor Result : Allowed Page 2 of 7 Awtar Singh & Anr. v. Jasbir Singh RC/ARC/E-98/11 dated 19.08.2009. It is also submitted that proper site plan indicating correct dimensions of demised premises is not filed by the petitioners. It is alleged that they have submitted an existing plan before the municipal authorities which is different from the site plan filed with this petition. It is submitted that the petitioners' intend to re-develop the property and dispose off the same at higher prices. In this regard, the petitioners had also entered into a 'collaboration agreement' with some builder for redeveloping the property. The site plan furnished has been sanctioned. It is submitted that the site plan relied upon before municipal authorities show that size of petitioners' shop is much bigger than to what is shown in the present petition. It is denied that the premises are required bona fide by petitioners' for purposes of their residence. Knowledge about the family members of petitioners' is denied. It is further submitted that the petitioners' have sufficient accommodation as the size of plot is 300 sq. yards and a major portion of the same is lying un-utilized. The exclusive ownership claim of the petitioners' over the premises in question is also denied and the decree dated 12.02.1992 is stated to be a collusive one. It is further submitted that the petitioners should have approached this Court under Section 14(i)(g) of the DRC Act however, they have filed this petition under Section 14(i)(e) of the Act to gain the benefit of summary proceedings.
4. Rejoinder affidavits are also filed the contents of which are primarily a re-assertion of the facts earlier pleaded as correct. In addition thereto, the petitioners' admit that they had entered into a 'collaboration agreement' with one Sh. Anil Sewani and Sh. Jagjeet Singh Sikka for redeveloping the property in dispute. It is stated to be an old construction requiring renovation. The petitioners' required additional accommodation for their family but they had no funds to raise the same. Sh. Anil Sewani and Sh. Jagjeet Singh Sikka assured the petitioners that they will rebuild the property at their own expenses after having got the premises vacated from the tenants/respondent herein. A basement floor, ground floor, first floor, second floor and third floor were to be built. The builders shall have the right to sell Result : Allowed Page 3 of 7 Awtar Singh & Anr. v. Jasbir Singh RC/ARC/E-98/11 the basement and ground floor. The first, second and third floor with terrace rights was to remain with the petitioners. It was also agreed that in case the tenants did not vacate the premises within six months of the agreement, the same shall be deemed to have been cancelled.
5. I have heard Sh. Sanjay Aggarwal, Advocate, counsel for the petitioners' and Sh. Kuldeep Mansukhani, Advocate, counsel for the respondent and gone through the record carefully.
6. The respondent is not challenging the ownership of the petitioners. The demised premises are also not in dispute. The only challenge to the present petition by the respondent is regarding absence of bona fide intention and establishment of a bona fide vis-a-vis the family requirement of the petitioners' as claimed in the petition. To controvert the bona fide need of the petitioners, it is argued that the very presence of a 'collaboration agreement' qua the demised premises would reveal that the intention of the petitioners is actually to sell off the property in question.
7. In the present case, the tenancy was oral tenancy. According to the petitioners the premises are residential in nature but were let out for commercial purposes. Presently, the respondent is carrying on business from the demised premises. Accordingly, it is not disputed that the nature of the tenancy was commercial. A perusal of the photographs relied upon by the respondent would reveal that the entire street where the demised premises is situated has been put to commercial use. It is argued that it is highly improbable that the petitioners' intend to occupy the demised premises which is just one room for staying there with their family particularly when the petitioners' can let out the said room at the present market rate of rent in regard to the commercial premises. In this regard, It has been observed that the aspect of the 'collaboration agreement' was not brought on record of this case by the petitioners in the main petition. Only after an objection of the respondent, the petitioners admitted that factum of execution of Result : Allowed Page 4 of 7 Awtar Singh & Anr. v. Jasbir Singh RC/ARC/E-98/11 the 'collaboration agreement' in their counter affidavit. They also placed on record the 'cancellation of receipt-cum-mutual understanding dated 17.12.2010' to the effect that by virtue of said document, the earlier 'collaboration agreement' stood cancelled.
8. The respondent has, perforce, argued that even a presence of an intention on the part of the owner landlord of parting with the possession of tenancy premises after having it vacated from lawfully inducted tenant casts doubt upon the bona fide requirement of the petitioners/landlord. In the instant case, the presence of the 'collaboration agreement' and alleged concealment of the same by the petitioners' in their petition under Section 14(i)(e) of the Act is projected as a pointer towards absence of any bona fide requirement on their part. To add to this, it is further argued that the plot wherein the premises in question is situated is measuring 300 sq. yards and by no means it can be said to be insufficient for the petitioners' family members in terms of appropriate and suitable accommodation. In this regard, the Ld. Counsel for the respondent has argued that a triable issue has been definitely made out. To add strength in his argument, Ld. Counsel relied upon the judgment of the Hon'ble High Court of Delhi in case titled 'S.S. Puri v. S.P. Malhotra' reported in 2002 DLT 95 399. In particular para 3 has been relied upon. The same is reproduced as under:
"(3) A disturbing trend can be perceived in the manner in which the Controllers are disposing-off applications for 'leave to contest'. Detailed Orders are passed at this stage itself. In doing so, the ARC is essentially finally deciding the disputed questions raised by the tenant on the explanation given by the Landlord in his reply which exercise should be carried out after the trial. This approach is to be deprecated. In a given case the Tenant may deny the ownership of the Landlord but if a copy.
of the Sale Deed is produced, or if it is the Landlord who had put the Tenant into possession, such grounds could rightly not be construed as having disclosed a prime facie case warranting a trial. But, to expand the illustration father, if the Tenant produces a document to the effect that the Landlord has divested or proposes to divert/transfer his ownership to a third party, and the Landlord puts forward an explanation Result : Allowed Page 5 of 7 Awtar Singh & Anr. v. Jasbir Singh RC/ARC/E-98/11 which appears to be plausible, yet leave to contest the petition should be granted to the Tenant, since a prima facie case has been shown to exist which can be conclusively be decided only after considering in evidence on The record. Of course if the Court is of the opinion that such a plea is only a device to delay, he should reject the Tenant's application. The case of col Surinder Pal vs. Rakesh Kumar. 1996 RLR 361 recommends this approach."
9. On the strength of the aforestated observation, it is submitted by the respondent counsel that in the instant case, the respondent/tenants have produced a collaboration agreement showing that the landlord had been proposing to divert/transfer his ownership to a third party and it would still constitute a triable issue even if the landlord/petitioners have come forward with an explanation which appears to be plausible i.e. 'receipt-cum-mutual understanding' document.
10. I have considered the said judgment in the light of facts and circumstances of this case. It is an apprehension of the respondent/tenant that the petitioners are willing to transfer possession of the demised premises for higher gains. It is also pleaded that in this regard several inquiries from various property dealers are being received on regular basis. The 'collaboration agreement' also reveals that the interest of the tenant in the demised premises has been totally overlooked. They had been left at the mercy of the builders who had undertaken unto themselves the responsibility of having the demised premises vacated from the tenants. As to how and in what circumstances the premises were to be got vacated was not decided while execution of the 'collaboration agreement'. Although the said agreement stood cancelled and the probable reason to that effect is an understandable resistance of the respondent, yet its mere cancellation does not rest the corresponding apprehension in the respondent mind that the landlord is willing to transfer the ownership as well as possession of the premises to a third party.
11. In terms of the judgment relied upon, I am of the considered view that the leave to contest application does indicate that the landlord proposes to Result : Allowed Page 6 of 7 Awtar Singh & Anr. v. Jasbir Singh RC/ARC/E-98/11 divert/transfer his ownership to a third party and accordingly the same is a triable issue. Since a prima facie case has been shown to exist which can be conclusively decided only after considering evidence on the record and the plea raised does not appear to be a device to delay, the leave to contest application is allowed. Respondent is granted un-conditional leave to defend. The application is accordingly disposed off.
Announced in the open Court (MANISH YADUVANSHI)
on 30.03.2013. SCJ-CUM-RC (SOUTH)
SAKET COURTS, NEW DELHI.
Result : Allowed Page 7 of 7